During that period of the
monarchy which preceded the eleventh century the revenues of the State were
derived from the rents of demesne lands, export and import customs, fines,
and escheats. These revenues were collected on the unsupported authority of
the sovereign by officers whom he personally named. Up to the reign of
Malcolm Canmore there is no record of any national convention or other
legislative assembly. Subsequently legal procedure in Scotland began to
assume an English impress. Scottish sovereigns became familiar with Anglican
modes. Margaret, Queen of Malcolm Canmore, whose pious and useful life
closed in the Castle of Edinburgh on the 16th November 1093, was daughter of
Edward, last of the Anglo-Saxon kings. A connection with England was renewed
when in the year 1100 Maud, daughter of Malcolm and Margaret, espoused Henry
I., and so became the English queen. At the court of his sister Maud, David
I. mainly resided, till in 1124 he succeeded to the Scottish throne. A
national convention was held in the reign of his brother and predecessor
Alexander I., when in 1107 it was declared that Turgot was chosen bishop of
St Andrews "by the king, the clergy, and the people." William the Lion, who
commenced his reign in 1165, assembled several conventions, which transacted
business as representatives of the clergy, the barons, and probo homines.
These last were vassals of the crown, who, bound to render suit and service
at the king's court, were on this account included in legislative
announcements. Practically they took no part in public concerns, leaving
these to be conducted by the sovereign, the clergy, the officers of State,
and the great barons.

At a, National Council held in 1230 there were present one bishop, one
prior, two earls, one of these being one of the two Justiciars, the High
Steward, and one other baron. The Assembly of Nobles which on the 5th
February 1283 acknowledged the Maiden of Norway as heir to the throne,
consisted of thirteen earls and twenty-four great knights and barons. And
the Convention at Brigham of March 1280, relative to the proposed marriage
of the infant queen, included about fifty earls and barons and a like number
of ecclesiastics. The first Scottish Parliament met at Scone in 1292 on the
summons of the king, John Baliol.

Burghs were first recognized in connection with
national affairs, when on the 23rd February 1295 the seals of six burghs
were affixed with those of the nobility and barons to an instrument relative
to an alliance with France. In the Parliaments of Robert I. are named along
with the clergy and barons, "the chief persons of communities," till, at a
Parliament held at Cambuskenneth on the 13th July 1326, were voted to meet
war and other costs, "a tenth penny of all rents" by those described as
earls, barons, burgesses, and free tenants of the realm.

On the part of the lesser barons—the probi
hominies of the twelfth, thirteenth, and fourteenth
centuries.—attendance at the king's court, and latterly in Parliament, was
felt as an intolerable burden. In order to their relief it was agreed in a
Parliament held by David II. at Scone in September 1367 that they might be
allowed to complete their harvests, by leaving public business to the care
of a Committee. Eighteen months later, when a Parliament assembled at Perth
in February 1369, business was delegated in like manner. Two Committees were
chosen, of which one was subsequently known as the Lords Auditors, the other
became prototype of two distinct bodies—afterwards to be prominently
associated with national affairs—time Privy Council and the Lords of the
Articles. Consisting of twenty-seven members, the Committee of the Articles
were nominated at an early stage of Parliamentary business, when the House
adjourned in order that they might prepare the bills. And when Parliament
reassembled, it was simply, without discussion, to grant confirmation. In
1535 the Lords of the Articles were authorized to make Acts with the whole
power of Parliament; they exercised this power by imposing a tax. Referring
to his absolute authority in Scottish Parliaments, James VI., in a speech
which lie delivered at Whitehall in 1607, spoke thus: "This I must say for
Scotland, and I may trewly vaunt it; here I sit and governe it with my pen.
I write and it is done, and by a clearke of the Councell I governe Scotland
now, which others could not do by the sword. For here must I note unto you
the difference of the two Parliaments in these two kingdomes. For there,
they must not speak without the Chancellor's leave; and if any man do
propound or utter any seditious or uncomely speeches, lie is straight
interrupted and silenced by the Chancellor's authoritie. . . If any man in
Parliament speake of any other matter than is . . . first allowed by mee,
the Chancellor tells him there is no such bill allowed by the king.. . . If
[in any law] there be anything that I dislike, they rase it out."

The Committee on the Articles underwent various
changes. Under Charles I. in 1633 it was ruled that the bishops make choice
of eight lay peers; and that the peers elect eight bishops, when the sixteen
so chosen should add to their number eight commissioners of shires, and
eight of burghs. Parliamentary attendance was reduced to two days, the first
for choosing the Lords of the Articles, and the second to sanction what
their lordships had devised.

At the commencement of the Civil War, the
Committee of the Articles was abolished. During his ascendancy, Cromwell,
who sought a common Parliamentary representation of the three nations,
appointed for Scotland thirty members, of whom twenty were to sit for
counties, and ten for burghs. But this node being generally obnoxious,
Scotland was during the Commonwealth represented in the single legislative
chamber by officials of the government, or by English officers. The former
Parliamentary system with the Committee on Articles was revived at the
Restoration. In 1690, when the Scottish Convention agreed to accept the
government of the Revolution, they stipulated that the Committee of Articles
should cease.

What had mainly tended to the ascendancy of the
court, by the ready acquiescence of the Estates in the delegation of their
authority, was the poverty of the lesser barons. While burgesses were
entitled to elect representatives, a corresponding privilege was denied to
landowners, who were constrained, under a penalty, to attend personally.
That attendance involved the heavy cost of taking part in a pageant which
accompanied each Parliament at its opening. This was called the Riding of
the Parliament. Members of the three Estates assembled at Holyrood Palace,
each attired according to his degree, and mounted on richly caparisoned
horses and preceded by trumpeters, rode to the place of meeting. In the
procession the commissioners of burghs and the lesser barons rode first,
next the great barons and the clergy. The great officers of State followed
up, preceded by the Lord Lyon, heralds, and pursuivants, bearing the
natioval insignia. Last rode the Sovereign, attended by his pages, and
followed by the royal guard. Entering the Parliamentary chamber, the members
were addressed in a discourse by the court preacher, and after some routine
business, were expected to return to Holyrood. To the lesser barons the
ceremony was a cause of embarrassment. Their personal and horse trappings
were understood, in most instances, to exhaust the revenues of a year. James
I. sought to relieve the rural landowners of Parliamentary attendance, by
allowing a representation, but his proposal was at the time not carried out
At length by a statute passed in 1567 the barons were allowed to send
commissioners from their several counties, but were also called upon to
defray the costs of the elected. The allowance as costs was in 1661 fixed at
£5 daily from the day of leaving home to that of return; but this sum was
greatly inadequate. Those entitled to vote at the election of commissioners
of shires were by statute in 1585 declared to be "such as have
forty-shilling land in free tenandry held of the king." This qualification
was undisturbed for two centuries and a half.

Prior to the reign of Robert II. (1371-1390) the
Acts of Parliament were composed in Latin, a language in which hitherto all
public business and private correspondence had been conducted. The earliest
existing MS. which presents any considerable body of the laws in the
vernacular is ascribed to the year 1455; it is preserved in the Advocates
Library.

From the earliest times the Scottish Parliament
met in one house, but the members were not allowed to occupy the same
footing, for the great barons and the clergy sat on benches, the officers of
state on the steps of the throne, and the commissioners of shires and burghs
upon "furmes" Parliaments assembled at Cambuskenneth, Scone, Perth, and
Aberdeen, commonly at Edinburgh, where the king chiefly resided. At
Edinburgh the Estates convened so early as the reign of King Robert the
Bruce. The Parliament Hall of Edinburgh Castle (now the garrison hospital)
was reared in 1434. A. spacious chamber, 80 feet in length and 30 in
breadth, with an open chestnut roof, richly decorated, it was appropriated
to other uses prior to the 3d of February 1489-90, when we find that the
Estates assembled in the Tolbooth. The Parliament House of Stirling Castle,
a Norman structure, with a hall 120 feet long, was used up to 1571, when in
September of that year a Parliament was there held in presence of the infant
James VI. The structure was then in considerable disrepair, and when the New
ToIbooth at Edinburgh was reared in 1561, it was opened as the Parliament
House. Within the New Tolbooth Charles I. held a Parliament in July 1633,
subsequent to his coronation. In the same vicinity, adjoining St Giles'
Church, a building was in 1640 reared for the accommodation of the Estates.
Of this fabric the great chamber, still known as the Parliament House, forms
the hall of the College of Justice. Measuring 122 feet in length by 40 in
breadth, with an open oak roof, springing from corbels of various designs,
it forms an apartment admirably adapted to its present purpose. In the
Laigh Parliament House were for a time accommodated the records of the
kingdom.

Besides enacting laws, the Scottish Parliament
imposed taxes for ordinary and extraordinary purposes, the latter including
the coronation and baptismal ceremonies, the destruction of freebooters, and
the suppression of insurrections. Taxes were ordinarily imposed upon the
land, but in 1692 Parliament levied a poll-tax with a view to meeting the
arrears which had occurred in the remuneration of public officers and of the
army during the four years which had elapsed since the Revolution. By the
poll-tax statute, every person of both sexes, whether householders or
lodgers, were required to pay into the Exchequer 6s. yearly. A cottar who
followed a trade was also required to male a payment of 6s. From servants
who received more than £6 of wages were levied one-twentieth part, and from
tenants one merk per hundred of the landlord's valued rent. Burgesses of
royal burgles were assessed according to means and substance. From persons
who held rank as gentlemen were exacted £3, and from landowners with £50 and
under £200 of valued rent, £4; with £200 and under £500, £9; and with £500
and under £1000, £12. Those whose valued rents exceeded £1000, and all
knights and baronets, were required to contribute £24, while barons were
expected to pay £40, viscounts £50, earls £60, marquises £80, and dukes
£100. The poll-tax proved unpopular, and was discontinued.

The Scottish Parliament ceased when, on the 1st
May 1707, the political Union with England was fully consummated. In the
Treaty it was provided that Scotland should in the Parliament of the United
Kingdom be represented by sixteen Peers in the House of Lords, and in the
House of Commons by forty-five members. By the Reform Act of 1868 the
representation in the Lower House was increased to sixty.

With the event of the political Union it was
hoped by English statesmen that the Scottish national insignia, consisting
of the crown, sceptre, and sword, would be borne to the Tower of London, but
the removal of the symbols was disallowed. In a large wooden chest they were
deposited in the Crown Room of Edinburgh Castle, of which the door was made
fast.

The original insignia of the Scottish monarchy,
including the crown royal and the coronation stone, were by Edward I.
removed to London in 1236, when John Baliol was deprived of his sovereignty.
A coronet with which, in the absence of the ancient crown, Robert the Bruce
was crowned at Scone, was also snatched by English invaders. But a new crown
constructed for the coronation of David II. in 1329 continued to be used at
every coronation till 1650, when it was at Scone placed on the lead of
Charles II. Elegantly fashioned, and richly adorned with jewels, it was in
the reign of James V. surmounted with two concentric circles, displaying at
the point of intersection a mound of (old, enamelled, also a large cross
partee. The circumference of the crown is 27 inches. The sceptre was
constructed for James V. in 15:36 during his visit to France. To James IV.
the sword of state was in 1507 presented by Pope Julius II.; it is
accompanied by a sheath, which is adorned with filigree work, embracing
Papal emblems interwoven with acorns and oak leaves.

The regalia were not only used at coronations,
but at the opening of every Parliament were borne in procession, and in the
place of meeting deposited on a table in front of the throne. When the Lord
Chancellor presented a bill for royal sanction, the Sovereign or the King's
Commissioner touched it with the sceptre, an act which gave effect to it as
a legal statute.

After being used at the coronation of Charles
II. in 1650, the national symbols were removed for safety to the Earl
Marischal's castle of Dunuottar. The Earl being a prisoner in England, the
defence of the castle was entrusted to Captain George Ogilvie of Barras,
with a garrison of one hundred men. Faithful to his trust, Ogilvie nobly
held out, but as the army of the Commonwealth had triumphed everywhere,
permanent resistance was hopeless. What strength might not secure was
attained by stratagem. On the counsel of the Dowager Countess Marischal, Mrs
Grainger, wife of the minister of Kinneff; a parish in the vicinity, asked
permission of the English commander to visit in the castle the Governor's
wife, her friend Mrs Ogilvie. The commander having acceded to her request,
Mrs Grainger and her waiting-maid entered the stronghold. After a brief
interval they returned, each bearing a supposed gift from the governor's
wife. For Mrs Grainger held in her lap what passed as a bundle of lint,
while her attendant carried what was described as the hards of flax. To
those possessing the deeper penetration of the north it would have appeared
obvious that a beleaguered garrison would not readily surrender any portion
of clothing or the material for producing it; but Cromwell's commander and
his staff happily were unsuspecting. The commander, it is alleged, helped
Mrs Grainger to her horse, and if this tradition is correct, he had some
opportunity of remarking the weight and form of her burden. By the
handmaiden were borne the sceptre and sword of state. Never before had
Scottish females entered on so daring an enterprise.

The -women quitted slowly the precincts of
Dunnottar Castle, but hastily traversed the remainder of their journey to
Kinneff Manse, about five miles distant. There did the venerable Countess
Marischal hail the success of a stratagem which concerned the honour of the
kingdom and the credit of her house. The minister of the parish hastened to
complete what his wife had begun so skilfully. The sequel is depicted in a
narrative which Mr Grainger supplied to the Dowager Countess: "The 31st
March 1652. I, Mr James Grainger, minister at Kinneff, grant me to have in
my custody the honours of the kingdom, viz., the crown, sceptre, and sword.
For the crown and sceptre I raised ane pavement stone just before the pulpit
in the night tyme, and digbed under it ane hole, and putt them in there and
filled up the hole, and Iayed down the stare, just as it was before, and
removed the mould that remained that none would have discovered the stone to
have been raised at all. The sword again at the west end of the church
amongst some common seatts that stand there, I digaed doun in the ground
betwixt the two foremost of these seatts, and laid it doun, within the caice
of it, and covered it up, so that removing the superfluous mould, it could
not be discovered by anybody. And if it shall please God to call me by death
before they be called for, your Ladyship will find them in that place.—JAMES
GRAINGER."

Mr Grainger survived the Restoration, and was
privileged to see "the honours" transferred from the earthen floor of his
parish church to their former place of keeping—the Crown Room of Edinburgh
Castle. There were the regalia, on 26th March 1707, locked up and secured.

So long as the regalia rested in the Union
strong box, Scottish nationality was asleep. Scotland at the Union had two
Secretaries, the number in 1714 was reduced to one, and when the Marquis of
Tweeddale retired from the office in 1746, it was not filled up. What
Scottish business fell to be transacted was nominally entrusted to the Lord
Advocate, but the bulk of government patronage was really in the hands of
one or two powerful families, who therewith aggrandized their friends and
rewarded their adherents. Professedly on account of the two Jacobite
insurrections Scotland was denied the privilege of embodying a militia. The
royal palaces were, without repair, allowed to crumble into ruins. To a
grazier were leased the royal gardens at Stirling, while the other precincts
of the palace were appropriated to hog-feeding, or allowed to become the
resort of gamblers and tinkers, and a haunt of the profane. Such indeed was
the condition of the precincts of Stirling Castle so lately as 1855, when it
was the privilege of the present writer to induce the authorities to promote
a salutary change. Till about thirty years ago, Stirling Castle was in its
various structures exposed to those modernizing changes which have deprived
it of its ornaments. The older palace was early wrecked, and in 1777 the
highly ornate palace of James V. was dismantled of its fittings, including
its superb oak carvings, and ruthlessly converted into a barrack. In like
manner were broken up the Parliament House and the Chapel Loyal, the former
being converted into a barrack, the latter into a store of arms.

At Edinburgh was experienced as keenly as in the
provinces the bitterness of alien rule. Within the Castle, the historically
precious chapel of Queen Margaret was unroofed, and allowed to fall into
decay. An hospital was formed of the ancient Parliament House. The royal
apartments, in one of which James VI. was born, were converted into a
canteen, or rooms in which soldiers were indulged with liquor. Amidst the
remonstrances of the citizens and the protests of the Corporation, a block
of barrack rooms was reared in the Castle, which, sufficiently adapted for a
rural mill-work, was calculated to deface a city otherwise remarkable for
architectural beauty. The palace of Holyrood was allowed to crumble, and its
Abbey Church so to suffer from neglect that its roof, in December 1768, fell
into the interior, crushing in its fall the gracefully sculptured columns,
and wrecking the royal tombs. Then children began to use in their diversions
the skulls and other bones of Scottish princes. The skulls of Lord Darnley
and Queen Magdalene Were exposed and borne off. Less than a century ago, the
Lord high Commissioner to the Church of Scotland was compelled, in lack of
accommodation elsewhere, to hold his levees in a tavern; and so lately as
1844 did the General Assembly meet for the first time in an appropriate hall
provided by the State. Within the last forty years the Lords Ordinary of the
Court of Session listened to pleadings and gave judgment amidst the stir and
bustle of the Parliament House.

Nor were the national registers better cared for
than the public buildings. The paramount duty of preserving the records, not
only for legal and constitutional purposes, but as monuments of history, was
suggested by the Lord President Forbes, and about eighteen years subsequent
to his decease, the sum of £12,000 for the erection of a Register House was
granted by the king from the fund of the Forfeited Estates. But this grant
was for nine years resolutely withheld. At length on the 27th June 1774 the
Register House was founded, but funds for the completion might not be had
till half a century later.

Prior to the depositure of the national records
in the Register House, they were kept in hogsheads in the Laigh Parliament
House, of which the northern wall was bordered by the damp earth of St
Giles' churchyard. The custodiership being loosely discharged, volumes were
borrowed and lost. A portion of the Records of the Privy Council were bought
as waste paper, and in 1794 eight volumes of the Register of Sasines were at
a public sale, purchased by a bookseller, who honourably restored them. The
latter incident led to a movement, which, iii the first instance fruitless,
aroused a spirit of inquiry. Some influential person, seeking to confirm his
title to certain lands, hoped to procure evidence from records not contained
in the hogsheads. And a notion possessed him that what was lacking might be
found in the Crown Room. Interesting the Barons of Exchequer, they procured
a royal warrant authorizing an examination. The instrument being directed to
the Great Officers of State, these, on the 22d December 1794, assembled in
the Castle. Under the guidance of the Governor, they proceeded to the Crown
Room. In the words of their report, it was "secured by a strong outer door
of oak wood and two strong locks, the keys of which were not to be found,
and the only window barricadoed on the outside by cross-bars of iron, and a
wooden frame within." The report continues, "when one set of doors was
forcibly entered, another set, consisting of strong iron bars, had to be
wrenched open." When at length the interior was reached, there was found in
an arched chamber, and resting under six inches of dust, a large oaken
chest. Though this was large enough to contain many registers, the
Commissioners on examining their warrant concluded that lawfully they might
not proceed further. So the search was abandoned, the strong barricades
which secured the apartment being stoutly replaced.

The uncertainty which attended the existence of
the national insignia was a source of deep concern to Sir Walter Scott, who
waited a suitable opportunity for instituting an inquiry. His personal
intimacy with the Prince Regent at length enabled him to effectuate his
purpose. By a. warrant from the Regent, dated the 28th October 1817, the
Great Officers of State, including Sir Walter as a Principal Clerk of
Session, were appointed Commissioners to enter the Crown Room, and therein
make due search for the regalia. On the 4th February 1818 they executed
their mission. As the key of the great chest could not be found, the lock
was forced. On the lid being raised were found, under several inches of
dust, the long-hid treasures. These were the crown, the sceptre, and the
sword of state; also a gold-topped silver rod, which was the Chancellor's
mace. With the exception of the sceptre, which was slightly bent, the
insignia were in excellent preservation. They are now exhibited in the Crown
Room.

Of the ancient Officers of State the highest in
rank was the Chancellor. Constituted by Alexander I., he in the reign of
Alexander III. received a salary of £100. The royal fiefs were administered
under his authority, and lie could grant or recall royal charters. Keeper of
the Great Seal, lie by its use rendered valid the regal writs. As President
of Parliament, he was conversant both with the civil and the canon law; and
usually chosen from among the clergy, he brought to that order much of the
influence which it possessed prior to the Reformation.

When Walter, son of Alan of Oswestry, was by
David I. appointed civil administrator of his household, lie was styled
senescale, that is, senior servant, the seniority implying dignity and rank.
The office so created became that of High Steward, which in the person of
Walter's representative, Robert II., was merged in the monarchy. As a
substitutional officer James I. appointed a Master of the Household, who
furnished and arranged the castles and palaces, and was chief of the royal
henchmen, pages, and yeomen. A Constable was first appointed in the reign of
Alexander I.; he kept the king's sword, led the royal army, and was chief of
the barons. From the reign of David I. the office was hereditary in the
family of De Morevile, and when that family ceased it was combined with the
office of March-scale, or Marischal. The Marischal was keeper of the
stable and master of the horse; he enjoyed high rank and exercised a
powerful authority. The Marischal's office became hereditary in the family
of Keith.

The Chamberlain had (as the name of his office
implies) charge of the camera or treasure-chamber. He presided in the
exchequer court, which derived its name from the chequered cloth which
covered the table at which lie sat. Under his presidentship assembled the
Court of Four Burgles, by which the laws of trade and commerce were framed
and administered. To the Chamberlain those who considered themselves
aggrieved by the decisions of inferior courts prosecuted an appeal; and the
penalties imposed by his decisions became a portion of his revenue. These
must latterly have been very considerable, for while in the reign of
Alexander III. the Chamberlain's salary was £200, his receipts for feudal
casualties, escheats, and other perquisites, amounted in a single year to
£5313. To lessen the power of the Chamberlain, which had become formidable,
James I. established the office of Treasurer. To the Treasurer the sheriffs
and other collectors of the national revenue presented their accounts at
intervals. Subsequently a portion of the Treasurer's duties were discharged
by the Comptroller, who superintended the royal manors. This officer also
exercised those functions which at a modern period were discharged by the
Barons of Exchequer. In 1596 James VI. appointed as Great Chamberlain the
Duke of Lennox, the office, which had become honorary, being made hereditary
in his house.

James I. appointed a Lord Privy Seal. By
impressing a small seal or signet, this great officer rendered valid writs
and gifts less important than those reserved for the great seal in the
keeping of the Chancellor. The Secretary was an officer who constantly with
the king, received memorials and complaints, and was by the sovereign
instructed how to deal with or dispose of them. By his signature royal
decrees were made valid. The Lord Clerk Register was keeper of the public
archives and Clerk of Parliaments; he also kept the minutes of the Privy
Council and of the higher judicatories. The King's Advocate was the
sovereign's legal adviser, and by royal authority prosecuted defaulters in
the public courts.

These, high officers, deriving their honours
from the sovereign, were official members of the Privy Council. They also
had seats in Parliament, but when the number of State offices had
indefinitely increased, it was in the year 1617 found essential to restrict
to eight those permanently invested with legislative authority.

During the reign of David II. a Secret Council
was nominated. The king was without issue, and as the succession to the
throne was attended with difficulty, it became essential that the question
should be considered by the officers of State in secret, also by other
councillors of position and experience. The difficulties to be surmounted
were these. On the one hand it was known that the king had indicated a
willingness to transfer the sovereign authority to the English monarch,
while on the other hand Robert the Steward, next in the order of succession,
was twice married, and his first wife, Elizabeth Mure, was within the
degrees forbidden by the canon law, while his marriage had lacked the Papal
sanction. By those who joined in the secret deliberations, it was resolved
that the independence of the kingdom be openly maintained, also that the
crown be settled upon the Steward and his eldest son by Elizabeth Mure. When
that son, who afterwards reigned as Robert III., was from sickness unable to
conduct the Government, his elder son, the Duke of Rothesay, was appointed
to administer in national concerns along with a council of eighteen persons.
Councils for advising the sovereign were thereafter appointed as necessity
arose, till 1489, when a Privy Council for aiding the royal authority was
constituted permanently. Of this body, the records since the year 1545 have
been preserved, and under careful editorship, are now being issued in
printed volumes by the Lords of the 'Treasury.

The Privy Council usually consisted of fifty
members, those additional to the officers of State being specially chosen by
the sovereign. As the executive of the State, the Privy Council. enforced
police regulations, and determined important questions relating to civil and
criminal affairs. In judicial concerns it was indirectly associated with
another court—the Lords Auditors of Parliament—which, like the Privy
Council, was entitled to review the judgments and decrees of inferior
judges. Changeable with each Parliament, the Lords Auditors consisted of six
churchmen, six great barons, and five commissioners of burgles, of whorl
several were ecclesiastics. For judicial duties, neither the members of the
Privy Council nor the Lords Auditors were specially qualified; and to remedy
the defect, James V. in 1532 established, under Papal sanction, a new
tribunal intended to combine the functions of the Lords Auditors and of the
Privy Council. Of this tribunal, the judges were styled Lords of Council and
Session, and there were, along with a president, seven lay and seven
clerical members. By the Pope it was understood that a churchman would
uniformly be Chosen o preside, and by churchmen was the presidential office
held till the Reformation. In 1579 the power of choosing a president was
granted to the court itself, but after some changes the right of nomination
was reserved for the Crown.

The ordinary lords were at first chosen by the
King and Parliament, afterwards by the latter. In the course of testing his
prerogative, Charles I., in 1626, displaced the Lord President and six
ordinary lords, the remaining eight being allowed to continue on obtaining
new gifts of their offices, thereby acknowledging that their former
appointments had lapsed on the death of the late kind. In the further
exercise of arbitrary power, Charles addressed letters to the Lords of
Session, commanding them in certain instances to delay judgment or to hasten
it. In a letter addressed to the Court of Session on the 25th November 1626
he, in a matter concerning the Earl of Murray, charged the Court "not to
medle." The abuses which attended such unworthy interference became
unendurable, and the priest-ridden monarch, in 1641, was necessitated to
agree that Scottish judges should not be appointed without Parliamentary
sanction. This provision was rescinded at the Restoration.

In 1640 the spiritual side of the Court of
Session was abrogated by statute. But the privilege possessed by the
sovereign of nominating unsalaried judges, styled Extraordinary Lords,
continued a source of irritation till the reign of George I., when these
supernumeraries were abolished. At its institution, the Court was endowed
with "10,000 golden ducats of the chamber," derived from the bishoprics and
monasteries; but the amount was levied so unsatisfactorily that in 1549 the
salary of an ordinary lord did not exceed £40. The salaries, augmented from
time to time, were, at the Restoration, equal to £200 sterling. In Queen
Anne's reign, each lord had a salary of £500. The present salary of a Lord
Ordinary is £3000, that of the Lord President £4800, and of the Lord Justice
Clerk £4500.

By Act I I George IV., the Lords of Council and
Session were reduced to thirteen. Formerly the fifteen judges sat together
in one court; but, according to modern arrangements, five judges styled
Lords Ordinary decide on all causes in the first instance, the remaining
eight judges being arranged in two distinct Courts, called the First and
Second Divisions, four sitting in each Court. In the First Division the Lord
President presides; the Lord Justice Clerk in the Second. To the First or
Second Division causes are brought for review from the Lords Ordinary, or,
in legal phrase, from the Outer Mouse. In the Court of Session legal
business long proceeded tardily, with the result that while law agents
became rich those involved in litigation were by slow stages severed from
their estates and homes. When in 1727 the celebrated Duncan Forbes of
Culloden became Lord President lie devised an Act of Sederunt, which
provided that no cause might be protracted in Court beyond the period of
four years. Prior to this provision many causes had been continued twenty
years, involving members of successive generations in legal uncertainty and
lamentable discomfort.

Collaterally with the Court of Session exists
the College of Justice, of which the judges are described as senators, and
which in its membership includes the whole legal faculty,—advocates,
writers, extractors, and clerks.

Prior to the Reformation a Consistorial Court in
every diocese was conducted by a judge named the Official, who was appointed
by the archdeacon. To the Official's adjudication were reserved matters
relating to legitimacy and divorce; also to movable succession, the
fulfilment of covenants, and cases of slander. By the Officials were
certified the Public Notaries, whose fitness and personal qualities largely
availed in tunes when four-fifths of the nation were unable to write. Ere
the Court of Session was established the chief legal business of the kingdom
was conducted in the Consistorial Courts of Edinburgh, Glasgow, and St
Andrews. Before the Reformation appeals from the Consistorial Courts might
only be determined at Rome. These appeals were prohibited in 1560, while on
the 8th February 1563 Consistory Courts were superseded by a principal
Commissary Court established at Edinburgh. Time Commissary Court, which
consisted of four commissioners or lay judges, was gradually merged in the
Court of Session. In 1836 it was abolished as a separate jurisdiction. By
the statute 4 George IV. c. 97 each county is formed into a separate
commissariot, the sheriff being commissary.

To the Lyon Court are referred all questions
relating to armorial bearings. The sole judge in this court is the Lyon
King, whose authority in Scotland is similar to that exercised in England by
Garter King of Arms. Lyon derives his title from his bearing a lion rampant
in the emblazonry of his official robe. One of his earlier duties was to
convey messages from the sovereign to foreign courts. He now appoints
messengers-at-arms and superintends them. On appointment Lyon formerly
underwent the ceremony of a coronation. Sir Alexander Erskine, Bart. of
Cambo, was on the 27th July 1681 crowned Lyon King at Holyrood Palace by the
Duke of York; he was the last who was so distinguished.

The Druids exercised the earlier jurisdiction;
they framed laws and executed them. Their courts and legislative assemblies
were held on natural or artificial eminences fenced by a ditch and rampart,
and which were styled mood-dun—that is, enclosed mounds. When the Saxon
superseded the Celtic tongue the name mod-dun was vulgarized into
maiden; hence the maiden castle of Edinburgh, the maiden craig of
Dumfriesshire, the maiden rocks of Carrick and Fife, and the maiden stones
of Ayton, Garrioch, Tullibody, and Clackmannan—all the localities so named
being associated with ancient courts.

But the scenes of early jurisdiction have in not
a few instances been distinguished as note-hills, mod being converted
into the Anglo-Saxon mote, and dun represented by its English
equivalent. There are mote-hills in the counties of Roxburgh, Dumfries,
Wigton, Lanark, Ayr, Stirling, Perth, and Aberdeen.

In memorial of the ancient ditch and rampart,
courts of law are still fenced by the macer in a form of words. The
mote-hill was latterly a place of execution. Thus on the mote-hill of
Stirling in May 1424, Murdoch, Duke of Albany, and several members of his
family, were publicly beheaded under the charge of treason.

Coeval with the Druidic age, and prior to the
Roman invasion, a species of legal government was conducted through the
instrumentality of a Toshach and a Maormar. The Toshach was an officer
racking with the Thane of the Saxons. Elected to his office by the chiefs of
a province, these submitted to his arbitration, and in the field accepted
his leadership. Galgacus was chosen Toshach by the Caledonians in their
early struggle with the Romans. The descendant of a Toshach whose power had
been prolonged was regarded as a prince, and latterly was crowned. The
Scottish King was a Toshach at the first. A '1'oshach founded clan
Mackintosh ; the name is in English the son of the Thane.

Exercising a separate and independent
jurisdiction, the Maorivar ruled over his clan, and became their supreme
lawgiver and judge; the subordinates of the Maormar were iifuovs, or lesser
judges. By Malcolm Canmore Maormars were designated earls, while Maors
latterly ranked as barons of baillieries, or inferior officers by whom the
mandates of provincial judges were put into execution.

Retributive justice, dispensed harshly to the
poor, was tardy among the opulent. At the dawn of history we find trial by
ordeal in full operation. A murderer taken red-hand was convicted summarily.
But when the criminal, whether charged with murder or theft, pleaded not
guilty, and could not be directly convicted, lie was allowed to clear
himself by corn-purgation. This was accomplished when a number of leal men
swore that they believed him guiltless. The compurgators varied from one to
thirty, but usually twelve persons were impanelled. If corn-purgation
failed, the accused person appealed to the Divine judgment by challenging
his accuser. Judicial combats were witnessed by churchmen in the belief that
the innocent would triumph. Knights were allowed to do combat by proxy.
Accused persons might elect to be tried by ordeal. The administration of the
ordeal was a monastic privilege. There was trial by fire, also by water.
Trial by fire was successful when the accused passed over a red-hot iron
unscathed, and by water when, if thrust into a lake, he swain safely to
shore. In the year 1180 it was ruled by statute, that "na baron have leyff
to bald court of lyf and lym, as of jugement of bataile or of watir, or of
het yrn, bot gif the scheriff or his serjand be thereat, to see gif justice
be truly kepit thar as it ow to be." [Innes's "Scotland in the Middle Ages,"
Faro., 1869, 8vo, pp. 183-7.]

Trial by the right of wager in battle existed in
the reign of David I., the accused being allowed to elect this mode of
proving his innocence in preference to "the purgation of twelve lead men."
In 1230, during the reign of Alexander II., it was provided by statute that
any one acquitted by an assize should not for the same offence be required
to submit to an ordeal.

With compurgation and ordeal subsisted a system
of compensation, whereby those guilty of public or private offences made
recompense both to the persons injured, and also to the State. In the
earlier portion of our written law rates of compensation are enumerated. The
king is valued at a thousand cows, the king's son and an earl at one hundred
and fifty cows, and a villein or ceorle at sixteen cows. A married woman is
estimated one-third under the value of her husband. For the wounding of an
earl the compensation was nine cows, of a thane three, and of a serf or
ceorle one. Next to the revenues derived from the Crown lands and customs,
the escheats levied from delinquents proved from the thirteenth century to
the sixteenth a chief national resource.

For the more efficient administration of
justice, David I. appointed a supreme magistrate, or chief justice, styled
the Justiciar. He sat in curia regis, and from time to time held circuit
courts or justiceayres.

By William the Lion a second Justiciar was
appointed, with his jurisdiction in the Lothians. In the reign of Alexander
III. the chief of the Corny ns was appointed Justiciar of Galloway. On his
temporary conquest, Edward I. divided the kingdom into four judicial
provinces, two justices, an Englishman and a Scotsman, being appointed to
each province. On the restoration of the national independence, King Robert
the Bruce divided the country into two judicial districts, one to the north,
and the other to the south of the Forth. At the chief burgle of each shire
the Justiciar held a court three times a year, not only for administering
justice, but also in applying it. The fines imposed by the Justiciar were
paid into the exchequer, with the exception of a tenth reserved for the use
of the Church.

Though occupying the royal judgment seat, the
Justiciar was not by any of the kings invested with the entire judicial
authority. From the Parliament of 1488, James II. received the following
counsel:--"It is avisit and concluded, anent the furthe putting of justice
throw all the realnle, that our souerane lord sail ride in proper persoune
about to all his Aieris ; and that his Justice [the Justiciar] sall pas with
his hienes, to minister justice, as leis thoclit expedient to him and his
Counsale for the tyinle."

During a judicial circuit in southern counties
made in the same year James occupied two months; he was accompanied by the
Chancellor, the Justiciar, the Treasurer, the Clerk Register, and the
Justice Clerk. To the last named officer pertained the duty of making from
the records extracts of fines. These he placed in the hands of sheriffs,
stewards, and Dailies for recovery.

In 1491 Parliament ordered that justice-ayres
"be held, set and balden twis in the yere, that is to say, anys on the griss
[grass], and anys on the corne.

The proceedings of the justice-gyres from
November 1493, and ending July 1513, have been preserved. They are contained
in two MS. volumes which, on the 5th March 1880, were deposited with the
Clerk of Justiciary, after being for 150 years in the custody of the Faculty
of Advocates.

In 1526 Parliament enacted that "our Sovrane
Lord be personalie present at the halding of Justice Aires, geif it pleses
his Grace;" also "that na Justice Aires be haldin na part, without our
Sovrane Lord and his Justice be present." From ordinary justice-ayres,
appeals might be prosecuted to the King's Council, or to the Judicial
Committee of Parliament, or to Parliament itself. An appeal bore the strange
title of "ane falsing of dome."

The office of Justiciar shared the fate of other
great appointments of State by passing into a personal office. Early in the
sixteenth century it was conferred on the Earl of Argyle. The Earl is named
as Justice General in a court which, on the 25th August 152G, was held by
his deputy. In the reign of Charles I., Lord Argyle resigned the
appointment, but continued to act as Justice General for the sheriffdom of
Argyle and Tarbert, and of the Western Isles. After other changes, the
sinecure office of Justice General was in 1793 conferred on James, third
Dube of Montrose. By a legislative act passed 23d July 1830, the office was,
on the ceding of the existing interest, declared to be merged iii the Lord
Presidentship of the Court of Session.

Early in the twelfth century Scotland was
divided into sheriffdoms, which again were subdivided into wards or
bailiaries, or constabularies. The sheriff was king's lieutenant within his
particular district. The decrees of the courts of regality and barony were
executed under his authority, while from district collectors he obtained
their drawings of the public cess, and made account of them to the
exchequer. The office of sheriff became hereditary, the duties being
delegated to some one in the neighbourhood acquainted with legal affairs.
The chief landowner of a bailiary was, as a territorial magnate, constituted
the hereditary bailie. Each royal castle was governed by a constable, the
field of his jurisdiction, styled the constabulary, extending only to the
castle and its precincts. The constable of Roxburgh Castle was also sheriff
of the county. When a royal castle, as at Dundee, was associated with a
burgh, disputes as to jurisdiction between the constable and the magistrates
were not infrequent.

The coroner or crowner was constituted by Edward
I. It was his office to compel attendance at the law courts of those charged
with crime by seizing their cattle and corn, or securing them personally in
ward. An office so liable to abuse was early superseded; it only remains as
one of the civic titles enjoyed by the Lord Provost of Perth.

By the magistrates of burghs, especially those
of Stirling, Perth and Edinburgh, was possessed a jurisdiction in blood
wits, that is the right of trying and pronouncing judgment on persons
charged with murder. Thus John Cheislie of Dairy, the assassin of the Lord
President Lockhart, was, in 1689, summarily tried and condemned by the
magistrates of Edinburgh.

The Justice of Peace Court, instituted in 1609,
was empowered to check civil broils and punish those who were disorderly. In
1617 two Justices were appointed for every parish. Agrarian controversies,
or those relating to matters of husbandry, were settled in courts of birlaw.
Of these courts the judges were selected by husbandmen and approved by
sheriffs or other local magistrates. Birley-7nen attended to the rights of
outgoing and incoming tenants.

In 1672 was established the High Court of
Justiciary, which included five Lords of Session as commissioners or judges,
under the presidentship of the Lord Justice Clerk. With headquarters in
Edinburgh, the commissioners were authorized to hold circuit courts at
Dumfries and Jedburgli, Stirling, Glasgow and Ayr, also at Perth, Aberdeen,
and Inverness. From 1708 circuit courts began to be held at the places named
twice a year. While in inflicting punishment English judges are ruled only
by statute, those presiding in the, criminal courts of Scotland are
regulated by common law, that is, the practice of their own courts. That
practice has widely varied. The early punishments were singularly harsh. For
libelling the Lord Justice General, Dowall Campbell was, on the 24th
February 1673, sentenced to have his tongue bored, and to stand two hours in
the cuck-stool or pillory. For committing an assault, Andrew Drummond was,
on the 29th November 1703, sentenced to be set on the cuck-stool, and "there
to have his neck and hands put in the same, and his lug nailed thereto the
space of an hour." In a circuit court held at Stirling on the 20th May 1709,
the Lords of Justiciary sentenced Thomas Smyth and Janet Walker, for the
offence of adultery, "to be taken to the mercat cross of Falkirk, and there
to stand with a paper on their breasts bearing these words in great lettres,
`Thir are adulterers;'" also to he taken to the parish church of
Muiravonside on Sunday, the 29th inst., and to be placed at the church door
with the same placard pinned to their breasts. On the 21st November 1726,
Isobel Lindsay, whose illegitimate child had died soon after birth under
circumstances of suspicion, was by the High Court sentenced to be "by the
hands of the common hangman, scourged through the streets of Edinburgh at
the five usual places thereof, receiving at each place five stripes upon her
naked back, and thereafter to be carried to the Correction-house, there to
remain five months." On the 28th December 1726, George Melvil "a notour
thief," was "set on the trone, and had his nose pinched." For theft, David
Alison was, in October 1727, "pillored," "pinched in the nose," and "sent to
the Correction-house." In March 1728, Jean Spence, "a notour thief," was "pillored,"
"hir lug nailed," and "hir nose pinched."

There being no county or district prisons other
than the cells of the tolbooth, criminals were seldom sentenced to
imprisonment, and then only for periods rarely exceeding six months. Other
punishments were cruel, but imprisonment was farcical. Prisoners in the
tolbooths of Edinburgh, Stirling and Perth were till within the last sixty
or seventy years allowed to indulge a species of diurnal revelry. The means
of conducting their jollities were procured from the good-natured public, to
whom the prisoners lowered from a cell-window a small box, with the words
inscribed upon it, "Pity the poor prisoners." The box received contributions
of tobacco, liquor, and fruit. Banishment from the sovereign's "hail
dominions, furth of Scotland," or from one district of Scotland to another
was a common sentence. On the 3d July 1711, the Lords of Justiciary banished
Euphan Clark from the shires of Forfar and Perth, for ten years. And on the
16th March 1726, Thomas Pyne was banished from the country north of the Tay.
The ordinary place, of exile during the eighteenth century was "his
majesty's plantations in America."

In 1742, several persons who had violated the
sepulchres of the dead, Were sentenced to "scourging and banishment;" in
1823, an offence of the same character was visited with seven years'
transportation. So long as the publication of Popish doctrines was held to
be penal, those who exercised the rites of the Romish faith were subjected
to trial and punishment. At the Aberdeen circuit court, held on the 3d May
1751, Mr Patrick Gordon, residing in the castle of Braemar, was, on the
charge of being "Habit and repute a priest, jesuit, or trafficking Papist,"
found guilty on confession, and was sentenced "to be banished furth of
Scotland," "with certification that if ever he return, he, being still a
Papist, shall suffer the pain of death."

Ordinary sentences of banishment were
accompanied by the provision that the convicts would be publicly whipped in
the event of their covertly returning. Thus on the 6th October 1749, the
judges of the Inverness Circuit sentenced Christian Ironside to perpetual
banishment from Scotland, declaring that "if ever she shall return, she
should be taken to the head burgh of the shire in which she is apprehended,
and thereafter, upon the first market-day, whipped through the town by the
hands of the common hangman, receiving the usual number of stripes upon her
naked back." In November 1790, the magistrates of Stirling applied to the
Commissioners of Justiciary for counsel as to whether they would subject to
a public whipping, a woman who had returned from banishment, and was in a
state of pregnancy. Scourging through the market town was a common sentence.
So recently as the early part of the present century, persons convicted of
perjury were by the Lords of Justiciary sentenced to be scourged.

A first act of theft was, irrespective of the
value of the articles stolen, visited with some leniency; but conviction as
"a notour," or habit and repute thief, was ordinarily punished by death.
From 1790 to 1830, were in the High Court sentenced to death as "notour
thieves," in 1790, William Gadesby; in 1791, John Paul and James Stewart; in
1797, John Young; in 1799, Andrew Holmes; in 1811, Adam Lyell; in 1815,
William Honyman and John Smith in 1816, John Black; in 1817, John Long and
Thomas Mitchell; in 1819, Burne Judd and Thomas Clapperton; and in 1829,
Jacob Laird. The majority of these offenders had robbed with violence.

The last criminal who, in Scotland, was hanged
for forgery, was Malcolm Gillespie, a native of Dunblane. As an officer of
Excise, he had distinguished himself ill the revenue service, and Raving
retired on a pension, settled at Skene, Aberdeenshire. But he indulged in
financial speculations, and so fell into the offence for which lie suffered.
On the 28th September 1827, convicted by a majority of the jury, lie was
executed at Aberdeen on the 16th November following. It may be remarked that
the judge who passed sentence upon Gillespie was reputed for his humanity,
and that the advocate-depute, who resisted commutation of the sentence, was
known to the writer as mild, gentle and beneficent. But the humanities in
relation to the administration of the criminal law were sixty years ago most
imperfectly understood.

Prior to undergoing the highest penalty of the
law, criminals guilty of heinous offences were subjected to torture. In
1689, Cheislie of Dalry, who in a state of lunacy assassinated the Lord
President Lockhart, was at his trial examined by torture, and being
sentenced to death, was drawn on a hurdle to the market-cross of Edinburgh,
where his right hand was struck off. Thereafter he was dragged to the gibbet
in the Grassmarket. His body was thereafter hung in chains at the spot now
covered by the suburban mansions of Drumsheugh.

Alexander M`Cowan, who at the circuit court held
at Perth in May 1750, was convicted of murder and robbery, was sentenced to
have his right Band struck off prior to execution. The last criminal hung in
chains in Scotland, was one Leal, a messenger in Elgin, who at the Inverness
Circuit in 1773, was found guilty of robbing the post, and sentenced to
death. According to the Inverness Register of Deaths his. body was "hung in
chains, at Janet Innes's cairn."

The Justiciary Court now sits each Monday during
session, and in spring and autumn proceeds on circuit. In determining
causes, the Court is assisted by a jury of fifteen persons, chosen by ballot
out of forty-five jurors summoned. The jury may decide by a majority and in
addition to the usual deliverances of guilty or not guilty, they are
privileged to adduce a verdict of not proven. Formerly when a panel was
found not guilty, lie was, in the Justiciary Record, described as "clenzit;"
and when guilty, as "fyllit;" if sentenced to death, the recorder set forth
that he was "justifiet." Scottish jurors anciently pledged themselves to
maintain honest judgment in these tingling rhymes:

"We shall leil suith say,
And na suith conceal, for na thing we may,
So far as we are charged upon this assize,
Be God himsel, and be our paint of Paradise
And as we will answer to God, upon
The dreadful day of Dome."

As public prosecutor, the Lord Advocate was
formerly privileged to insist on the conviction of every prisoner by
menacing the jurors with "assizes of wilful error," that is with personal
penalties. Among the articles of grievance represented in 1689, the
Advocate's power of menace against juries was in-eluded. The right of menace
was withdrawn. By an act passed on the 31st July 1868, the Lord Justice
General, the Lord Justice Clerk, or any single judge in the Court, was
authorized to preside alone at any criminal trial.

Apart from the legal tribunals directly
sanctioned by the Crown, and in which the judges were justiciars, and
sheriffs, and other magistrates, both of county and burgh, there existed
courts of regality and barony, in which justice was roughly and arbitrarily
dispensed. For a feudal baron was practically invested in the sovereignty of
the territory conveyed to him by his charter, and even when the soil was
alienated, he continued toe excise a jurisdiction over those who occupied
it. And he was bound by no form of process, or restrained by any law,
statutory or common.

By statute four crimes, murder, rape, robbery,
and fire-raising, were, as "pleas of the Crown," reserved to the
jurisdiction of the King's judges; nevertheless the, lord of regality
asserted the power of dealing with every description of felony within his
feudal domains. He owned the right fosses et fitrca—that is, of punishing by
pit and gallows. Under the right f urea the baron could suspend on a gibbet
any of his vassals. The punishment fosses was of a twofold kind, since the
baron could immure in a pit or dungeon, or sentence to death by drowning. In
earlier times the regality prison was a species of pit, partly or wholly
underground. In the episcopal castle of St Andrews, founded by Bishop Roger
in the year 1200, a circular pit was formed in the rock on which the
stronghold rests ; it is nearly thirty feet in depth, with a diameter at top
of seven feet, and at base of twenty-seven. Therein offenders against the
Church or State were to be immured, and within it in 1544, under the charge
of heresy, were confined Friar John Roger prior to his secret assassination,
and in 1546 the pious reformer, George Wishart, previous to his martyrdom.
Regality prisons were latterly constructed under the arches of the older
bridges; also within the damp vaults of unoccupied castles. Within lochs and
ponds and in ditches female convicts were soused or drowned. In the
baronial. court of Sir Robert Gordon of Gordonston, held. at Drainie on the
25th August 1679, Janet Grant was, on a charge of theft to which she pleaded
guilty, sentenced to be drowned next day in the Loch of Spynie. From the
practice of the regality courts in extinguishing by water the lives of
female offenders, the government of James VII. adopted this mode of
silencing those women who ventured to impugn the king's arbitrary rule.
Charged with denying that James was entitled to rule the Church according to
his pleasure, Margaret M`Lachlan, aged sixty-three, and Margaret Wilson, a
girl of eighteen, were on the 11th May 1685 made to perish in the waters of
Blednoch.

In the earlier times lords of regality could
seldom read or write; hence they appointed bailies to preside in their
feudal courts, and otherwise to act on their behalf. Latterly a bailie was
appointed to preside in every regality court. The abbot and monks of Cupar
had on their home estate a principal bailie and two deputies. At the
Regality Court of Dunfermline certain officers connected with the several
districts of the jurisdiction were statedly examined concerning "bludes"—that
is, as to blood-shedding, whether by slaughter or wounding. On the 6th
October 1631 Andrew Alexander "gave up ane blude committed between William
Craik and James Barclay." By the Regality Courts of the north was exercised
a rigorous authority. Content in their records to enter the naives and
offences of accused persons, and the names of jurors, the result of a trial
was expressed by such words as "clenzit" or "convickt." To those in the
latter category are usually added the words "hangit" or "drounit." In the
Book of the Regality of Grant are presented sentences of unparalleled
severity. A lad, Donald Roy Fraser, charged with plundering "the socke of a
pleughe," was on the 14th June 1692 convicted on his own confession, when
the bailie of court, James Grant of Galloway, sentenced the prisoner "to be
nailit be the lug with ane Irene naile to ane poste, and to stand flier for
the spaice of ane hour without motione, and be allowed to break the griss
nailed without drawing of the nail." Having on the 22d May 1696 convicted
two ignorant persons, a father and daughter, of "stealing and resetting of
sclieip," the bailie of Grant ordered the delinquents to execution. But as
"supplication" was made for then by their neighbours, who besides offered to
become security for their future good behaviour, the bailie recalled the
death sentence, and substituted the following: "That Patrick Bayn be taken
immediately from court to the Ballow foot upon the moor of Ballintore, and
tyed thereto with hemp cords, and his body made naked from the belt upward,
and then to be scourged be the executioner with ane scourge by laying upon
his body twenty-four stripes to the effusion of his blood." The daughter was
sentenced to be "scourged with thirty stripes till her blood rin doun, and
thereafter to be banished from Strathspey." On the 2d September 1697
Ludovick Grant of that Ilk and his bailie, sitting on the bench together,
gave sentence that three persons guilty of horse-stealing should be carried
prisoners from the court to the pit of Castle Grant, there to remain till
Tuesday next, and under guard carried to the gallow-tree of Pallintore, and
to be all three hangit betwixt two and four in the afternoon till they be
dead." Another offender, Thomas Dow, was at the same time sentenced to be
bound to the gallows during the time of the execution, and thereafter to
have his left car cut off, and to be scourged and banished the country."

By regality courts were also determined civil
causes, and enacted binding regulations in regard to home products. Thus, on
the 29th January 1669, the judge of the regality court of Dunfermline
considering "the low pryces and waitts [weights] that is given for beer and
malt, ordained brewers and tipsters to retail and sell the same at sextein
pennies the pynt (instead of twenty) in the several parishes of the regality,
under the penalty of ten merkis scotts, toties guoties."

Through the claims asserted by the lords of
regality, criminals were not infrequently rescued, from the jurisdiction of
the ordinary courts. For a lord of regality could repledge a criminal in the
kings court by offering security that he would be tried in his own. Or he
might claim the right of sitting with the kin's judge, and thereby impede
the even course of ,justice.

Then the regality court, a less important feudal
jurisdiction was the court of barony. In the barony court a thief might be
punished by a capital sentence, if caught with the fang, "that is if
captured while bearing the article stolen." Yet sentence of death could he
pronounced only when the criminal was brought up within three suns after
committing his offence. Ordinarily the judge of the barony court was
expected to confine his administration to the enforcing of statutes for
preserving game, and protecting orchards and rabbit warrens. He might also
punish summarily those who wantonly destroyed certain saplings of the
forest. Hence the rhyme :—

Oak, ash, and elm tree,
The laird may hang for a' the three;
But for saugh and bitter weed
The laird may flyte, but mak naething be't."

Freeholders and landowners, disqualified from
holding regality or baronial courts, might act as soyters at a justice ayre.
Under authority of the ayre courts, soyters passed upon inquests, and
attended to the due execution of sentences. In south-eastern districts the
soyter exercised an authority similar to that of the provincial sheriff.

During the reign of William the Lion freeholders
were charged to attend the courts of justiciars and sheriff's. In 1449 the
command was renewed by statute, while in 1540 it was ordained that those
freeholders who owed suit and service in the regality and other courts were
to be fined for non-attendance. At "the head court of the bailyearie of
Cunningham held within the tolbooth of Irvine," on the 6th October 1674, the
depute "unlawed and amerciated ilk of the absentis in the soum of fyfteen
pund scotts money for their contumacie, couforme to the, act of Parliament."
And from "the Register of the Stewartry of Menteith" (1639-1733), we learn
that the heritors and freeholders were bound to be present at each of the
head courts held three times a year. On the names being called, those who
failed to answer were each amerced in a penalty of £50. In 1672 a statute
provided that all freeholders, magistrates, and dignified persons of the
shire should wait upon the Commissioners of Justiciary at their several
circuits. The rule being found burdensome, a new regulation was made on the
1st May 1760, whereby the attendance of noblemen, barons, and freeholders,
was dispensed with, the sheriff and his deputies excepted.

By public statute heritable jurisdictions,
realities, and constabularies, were, from the 25th arch 1748, abrogated and
dissolved, while a sum of £150,000 was granted from the exchequer as
compensation to the holders. To barons and their Dailies were reserved the
right of inflicting penalties against those convicted of assault, to the
extent of twenty shillings, or by "setting the delinquent in the stocks, for
any time not exceeding the space of one month." In civil causes
baron-bailies were allowed to decern for debts not exceeding forty
shillings, also for the recovery of "mails and duties" from their own
tenantry. The owners of baronies did not readily acquiesce in being deprived
of their higher authority, and some of them continued to appoint their
officers of justiciary long after such appointments could exist only in
name.

A new judicial system supervened. Of every
county, the Lord Lieutenant was appointed High Sheriff, while under him, yet
of independent authority, was nominated as Sheriff-Depute, an advocate who
had at least three years' practice in the Court of Session. The
sheriff-depute was authorized to hold occasional courts, but his duties were
chiefly to consist in considering appeals from the judgment of his
substitutes.

For the office of sheriff-substitute was
required no special qualification, persons of local respectability being
willing, like London vestrymen, to undertake a round of arduous and irksome
duties, rewarded solely by the dignity of office. Our lamented friend, the
late Dr Hugh Barclay, sheriff-substitute of Perthshire, in one of his
entertaining publications, facetiously refers to a sheriff substitute, who,
"practising as an apothecary, dispensed justice and medicine alike in
scruples, and was conversant with injections and ejections alike; he could
also purge witnesses."

At length the importance of securing an
effective sheriff' substitute was so generally recognized that in 1787 a
small salary was allowed. This was, about twenty years later, fixed at £200,
the appointment being still conjoined with some other office. In 1825 it was
ruled that the qualifications of every sheriff-substitute should, on his
appointment, be certified by the President of the Court of Session, also by
the Justice Clerk. Increased emoluments were also provided; these have been
augmented by subsequent acts.

To the sheriff and his substitute belong
extensive criminal jurisdiction, but the more important causes are, at the
discretion of the Lord Advocate and his deputies, reserved for the Court of
Justiciary. The sheriff and his substitute may try criminal causes with or
without a jury; they may inflict imprisonment for a year, or impose
penalties to the extent of fifty pounds.

A dempster or doomster was associated with the
court of Parliament; he was Indicator Parliamenti, the conclusions of
Parliament being expressed by his voice. The office of heritable dempster to
Parliament was, by Robert II. in 1349, confirmed to Andrew Dempster of
Cariston. By David Dempster in 1476 were claimed before the Lords Auditors
"ten pundis amerciament of fee ilk parliament," also a fee of each justice
ayre held in Forfarshire,—claims which the Auditors allowed. On the 7th
October 1476, judgment was given in a cause by the mouth of Alexander
Dempster, in presence of the king sitting in the Parliament-house with the
crown on his head, and the sceptre in his hand. From the earlier times a
dempster was connected with every court which exercised criminal
jurisdiction. When a criminal was convicted and sentence of death recorded,
the dempster was called upon to repeat the sentence aloud. On a handbell
being rung by the presiding judge, the dempster entered the court. After
repeating the words of the sentence, he added, "And this I pronounce for
doom." If the dempster was not forthcoming or his duty was imperfectly
discharged, it was held that a death sentence might not be carried out. At a
circuit court held in Glasgow on the 10th. May 1723, Margaret Fleck, a
married woman, was, on the charge of rough-handling her infant child so as
to cause its death, declared guilty of murder and sentenced to death. The
sentence is in the Justiciary Record entered thus:

But Thomas Cochran, dempster and executioner of
Glasgow, would not make valid a sentence which the evidence (as it appears
on the record) did not justify. Undeterred. by his refusal, and the
universal sympathy of the people audibly expressed, the two circuit judges,
Lords Dun and Pencaitland, sanctioned the following, minute:-

Next morning one Robert Yeats, in consideration
of his being appointed dempster of the court, made the doom legal by
pronouncing it.

On the 16th March 1773 the Commissioners of
Justiciary abolished the office of dempster, and decreed that sentence
should be pronounced by the presiding judge, and afterwards read by the
Clerk. The abolition arose from an indecent exhibition in the High Court,
thus described by Sir Walter Scott. The office of dempster leaving become
unexpectedly vacant, one Hume, who had been sentenced to transportation as
an incendiary, consented temporarily to fulfil the office. Brought into
court to pronounce sentence of death upon a fellow prisoner, he omitted the
duty, but warmly reproved the judges for the severe sentence they had
imposed upon himself. Hume was forcibly ejected, and it was forthwith
determined to avoid the recurrence of so unseemly a demonstration. Early in
the present century Lord Justice Clerk Eskgrove introduced the English
custom, whereby the judge in pronouncing sentence of death wears a black
cap.

It has been alleged that in regalities connected
with ecclesiastical establishments, dempsters were unemployed. This is an
error. In seeking to extirpate heresy by burning the devoted confessors,
Resby and Craw, Bishop Wardlaw of St Andrews appointed as dempster and
executioner to the regality a person named Wan, whose office became
hereditary in his family. The hangman's acres, situated at Gair Bridge, near
St Andrews, are still in possession of Wan's representatives. Till the year
1773 ordinary sentences passed in court were publicly intimated by the macer.

The dempster of court usually executed the
sentence which he pronounced. An executioner was appointed to each principal
town. He was usually styled "the lockman," since in right of office he
possessed the privilege of helping himself to a lock or handful of farm
produce from every sack in the market-place. The hangman's measure was
subsequently determined by a timber cap or iron ladle, given by the
magistrates to every executioner on his appointment. Time executioner of
Stirling's collecting cap is preserved in the museum of that burgh.

A century ago, when capital sentences were
becoming less frequent, and hence the executioner's office less needful,
disposers of grain began to hold that the summary opening of their sacks and
the appropriation of their produce was an intolerable infliction. At
Dumfries market in 1781 a grain dealer named Johnstone deforced the burgh
executioner in his attempt to open his sacks, and in consequence was
sentenced to imprisonment. Put the magistrates who gave judgment,
apprehending that Johnstone's example might induce a general resistance,
sought the advice of counsel. By the legal authority consulted, the
executioner's claim and the magisterial action upon it were approved ; but
the demand continuing to induce complaint, it was in 1796 wholly withdrawn,
while the executioner's salary, payable by the burgh, was proportionably
increased. Till the close of the century every burgh lockman had his free
house and stated salary, varying from £8 to £10 sterling, together with a
special fee for every execution.

The lockman of Edinburgh was an officer both of
the Justiciary Court and of the municipality. From the Exchequer he received
a salary of five pounds, while latterly, in commutation of his market
privilege, he had granted him by the Town Council a weekly allowance of
twelve shillings. The execution fee considerably varied. In 1780 James
Alexander, lockman of Edinburgh, was by the city chamberlain paid for
service at an execution 13s. 4d., with a fee of 2s. 6d. for the use of his
rope. Subsequently the lockman received two guineas at every execution.

The Edinburgh executioner was arrayed in grey
trousers and vest, with a black velvet coat, trimmed with silver lace. The
corporation evinced especial care that he should be properly habited in
executing his office upon notable offenders. In reference to the execution
of the Regent Morton the Burgh Records present the following entry: "2 June
1581,—The prouest, baillies, and counsale vnderstanding that James, Eric of
Mortoun, is to be execut to the deid afternone for certaine crymes of lese
maiesty [high treason], ordains Androw Stevinsoun for honour of the towne to
caus mak ane new garment and stand of claythis of the townis liveray to
thair lokman with expeditious, and Johne Robertsoun, thesaurer, to refound
to him the expenssis."

The Edinburgh lockman had his dwelling in the
Fishmarket Close, and was expected to occupy a seat specially allocated to
him in the Tolbooth Church. In his "Traditions of Edinburgh," Dr Robert
Chambers remarks that the lockman, John Dalgleish (frequently named in the
"Heart of Midlothian") was a regular communicant, but was accommodated at a
special table when all the other communicants had retired.

Those who were appointed to the hangman's office
were seldom noted for their personal virtues. From the Burgh Records of
Glasgow we derive the following: "7 September 1605.—John M`Clelland, beand
apprendit as suspect of theft and challeingit thairfoir, and be the
clemencie and grit mercie of the proveist, baillies, and counsale of this
burgh was put to libertie, and fred out of the tolbuith and prissounhous
thairof, vpon conditiouns gin ever he sould be found within the town agane
to be hangit without ane assys, as the act maid thairvpone of his awin

On the 19th October 1576 the Dailies of
Edinburgh suspended the lockman from office on account of "his monyfald
offeussis in oppressing of the peple for common tulze" [broils]. In his
place they appointed Dustyefute " [probably an old pedlar] to act "during
thair willis." On the 25th August 1617 the Kirk-session of Perth resolved to
inform the Town Council of the vicious life of James Stewart, the burgh
executioner, likewise concerning his "cruelty and oppression against poor
weak persons." In the reign of Charles II. Alexander Cockburn, executioner
at Edinburgh, who was convicted of murder, was executed by the hands of
Mackenzie, the hangman of Stirling, whom it was believed he had wantonly
traduced. John High or Heich accepted office as executioner at Edinburgh in
1784 in order to escape the sentence of death pronounced upon him for an act
of theft he survived till 1817.

Gibbets were reared on eminences styled
gallowhills; also where two roads met, and on lonely muirs. A lime tree at
the gallows ford, near Crieff, marked the scene of many executions in
freebooting times. When a Highlander passed the sombre erection he
uncovered, and, expressing a blessing upon himself, added words of
execration upon the instrument of doom.

The Edinburgh gibbet anciently stood at the
Burgh Muir, about a mile north-westward of the city. But on the 24th August
1586 the Town Council resolved to rear a gibbet in a more convenient
locality. "In respect," proceeds the Council minute "that the awld gallowis
in the Burrow Mure is failled and decayand, bayth in the tymmer wark and the
wallis, and that the sam stands vpoun the grand quhilk is now sett in few,
thairfore ordains the sam to be rernovit and tay ne doxv-ne, and ane new
gallows of pillers of stayne with waillis to be bigget and raysct narrer the
towne in the place levy set thaairfore and pottet be my lord provost, and
als consents to contract with ane masoun for doing thairof for the sowme of
twa hundreth mark, and the masoun to furneis all necessars of stayne, lynze,
and warkinansebip, and the said sownie to be payet furth of the entres
syltier of the said mwre."

Of two gibbets subsequently erected at
Edinburgh, that chiefly in use stood in the Grassmarket. An execution which
took place there in 1774 is thus described by Major Topham:-

The houses from the bottom up to the top were
lined with people, every window crowded with spectators to see the
unfortunate nian pass by. At one o'clock the City Guard went to the door of
the Tolbooth, the common gaol here, to receive and conduct their prisoner to
the place of execution, which is always in the Grass Market, at a very great
distance from the prison. All the remaining length of the HIill Street was
filled with people, not only from the town itself, but the country around,
whom the, novelty of the sight had brought together. On the Guard knock-in,,
at the door of the Tolbooth, the unhappy criminal made his appearance. He
was dressed in a white waistcoat and breeches, usual on these occasions,
bound with black ribands, and a nightcap tied with the same. His white
hairs, which were spread over his face, made his appearance still more
pitiable. Two clergymen walked on each side of him, and were discoursing
with hill on the subject of religion. The executioner, who seemed ashamed of
the meanness of his office, followed, muffled up in a great coat, and the
City Guards with their arms ready, marched around him. The criminal, whose
hands were tied behind him, and the rope about his neck, walked up the
remaining part of the street. . . . When the criminal had descended three
parts of the hill which leads to the Grass Market he beheld the crowd
waiting for his coming, and the instrument of execution at the end of it. He
made a short stop here, naturally shocked at such a sight, and the people
seemed to sympathize with his affliction. When he reached the end he
recalled his resolution; and after passing some time in prayer with the
clergyman, and once addressing himself to the people, he was turned oil and
expired."

Till the commencement of the present century, on
the evening prior to an execution, the magistrates of Edinburgh indulged Ca
procedure which they described as "splicing the rope;" they met at Paxton's
tavern in the Exchange, and made their arrangements over liquor. After every
execution at Paisley, the burghal authorities had a municipal dinner. The
execution at Paisley of Thomas Potts, in 1797, incurred a cost of £33, 5s.
3d., of which the sum of £13, 8s. 10d. was expended on the civic feast, and
the further sum of £1., 14s. 3d. on the entertainment of the executioner and
his assistants.

As an instrument of death, the gibbet was
reserved for criminals of the baser sort. Offenders of rank sentenced to
death were decapitated. At Edinburgh was used a "heiding sweird;" which we
learn from the Burgh Records was always sharpened before use. In February
1563, the old heading sword being "failzit," a two-handed sword was acquired
in its stead. The famous decapitating instrument known as the Maiden, was
constructed in 1565. A beheading machine so named was, in 1541, introduced
at Halifax in Yorkshire, its appellative being derived from the Celtic
mod-dun, originally signifying the place where justice was administered.
Preserved in the Museum of the Society of Antiquaries, the Edinburgh
"Maiden" may be thus described : Into an oak beam five feet in length, are
fixed two upright posts ten feet in height, and twelve inches apart. Between
these uprights in a deep groove works a steel blade, laden with a portion of
lead weighing seventy-five pounds. When the executioner unloosed a rope by
which the laden axe was supported in the upper part of the groove, it fell
heavily on the neck of the criminal which rested on a cross beam, and
thereby produced instant decapitation. At least one hundred and twenty
persons, including the regent Morton, were by the Edinburgh "Maiden"
deprived of life. In 1710 its use was abandoned. The heads of remarkable
offenders were anciently placed over the Nether Bow, or on a pike at the
Tolbooth.

By the hands of the executioner were performed
many odious functions. In 1436, Sir Robert Graham, the chief assassin of
James I., was by this officer nailed to a tree, then torn with pincers, and
latterly crowned with a red-hot crown. The hangman wielded special
instruments of torture. In 1593, the Earl of Orkney's brother was charged
with conspiring against his life, and of being assisted in his plotting by
Alison Balfour, "a notour witch." Alison, a married woman of untainted fame,
declared her innocence, but her supposed perjury was held to aggravate her
offence. Her limbs were by the executioner thrust into the caspieclaws, an
iron frame, which was gradually heated till it burned into time flesh. As
confession could not be obtained, her husband was, in her presence, torn in
the rack, or "long irons," Next her son was thrust into the boot, an iron
cylinder into «-hick the legs were inserted from the feet to the knee
,joints, when by the executioner were delivered fifty-seven mallet-strokes
on wedges resting between the case and the limbs until flesh and bones were
crushed. Next was brought is Alison's little daughter, to whose hands were
applied an iron screw, called the pilniewinks, which, thrusting the nails
into the flesh, made the blood spurt from the finger points. Sooner than
endure this last spectacle, Alison offered to own herself a witch ; she was
now burned by the executioner.

By the Scottish Privy Council, on the 23rd July
1684, was accepted a new instrument of torture. The minute testifying its
reception proceeds thus: "Whereas the loots were the ordinary way to
expiscate matters relating to the government, and that there is now a new
invention and engine called the Thumbkins, which will be very effectual to
the purpose and intent foresaid, the Lords of his Majesty's Privy Council do
therefore ordain that when any person shall by their order be put to the
torture, the said boots and thumbkins both be applied to them, as it shall
be found fit and convenient." A few weeks later the cruel myrmidons of a
tyrant experimented their new instrument on the hands of the afterwards
celebrated Principal Carstairs, whom they desired to confess that lie knew
of a confederacy for excluding the Duke of York from succession to the
throne. Carstairs endured the application of the new "engine" by the
executioner for one and a half hour, yet refused to divulge aught which
might embarrass his associates. By the government of the Revolution, the
instrument of torture was presented to him in token of admiration and
respect.

A pair of thumbkins of large size, which
belonged to the burgh of Montrose, is preserved in the National Museum at
Edinburgh. It resembles a miniature pair of stocks with a strong central
screw. The thumbs were by the executioner thrust into two apertures, who
screwed down the upper bar till the bones were
crushed.

Confession was also extorted by means of a
prickling iron shirt; it was contrived by General Dalzell, and applied by
him to imprisoned Covenanters. Fire-tongs were used, when the thumbkins and
iron shirt were not at hand. The points of the tongs being made hot, were
extended between the shoulders, and applied to each arm till the flesh was
burned to the hones. When confession did not follow, the tongs, heated a
second time, were applied under the arm-pits.

The application of torture was specially
approved by James VII., under whose government it became common. Not
improbably its prescription by the Romish Church may have reconciled to the
usage a prince who preferred ecclesiastical usages to the sanctions of
humanity. By a decree of Pope Innocent IV., in 1282, magistrates were
enjoined to subject heretics to torture in order that they might be urged to
confess both against themselves and against others who cherished their
obnoxious opinions. In 1640, torture was inflicted in England for the last
time and on the 11th April 1689, the Scottish Parliament declared "that the
use of torture without evidence and in ordinary crimes is contrary to law."

The method of destroying by fire those charged
with heresy or sorcery was clearly derived from the practice of (burning
criminals adopted by the Druids. By the executioner the victim was bound
with ropes to a stake raised upon a heap of coals and timber; he was then
surrounded with faggots, strewn with tar. Having tightened the rope around
the victim's neck, the executioner applied fire to the heap, which instantly
blazed up. Within less than an hour the body was consumed.

Scourging was a common punishment. The
magistrates of Edinburgh scourged by various modes. Ordinary offenders were
whipped "at the poultry market," greater offenders "in the correction
house," and "riotous criminals from street to street." For scourging each
offender the Edinburgh executioner received in the seventeenth century a fee
of one pound Scots; the payment was subsequently increased.

The mode of flogging from street to street
somewhat varied. On the 10th December 1538 the magistrates of Haddington
sentenced a thief to be whipped through the town, "bundyn at the erse of ane
cart." In 1697 the Town Council of Hawick sentenced two women for theft "to
be taken out of the irons at the tolbuith and publicly scurged thro' the
hail toun in the market day, and at the east end of the toun to be brunt on
the chiek with the letter H and thereafter to be banished the toun by touck
of the drum." In May 1753 Agnes Blyth was for hen-stealing sentenced by the
Sheriff of Edinburgh to be whipped through the streets and thereafter
banished from the country.

Deprivation of the ear, or "lugging," was
anciently inflicted by the executioner upon runaway serfs, latterly on
notorious felons. Branding was common. The branding iron of Dunfermline was
a rod two feet long, having a square lump of iron at the end, on which were
engraved the letters Dun-Reg, that is, Dunfermline Regality. The square end
of the instrument being made hot was by the executioner thrust against the
offender's forehead. Female offenders were branded on the cheek.

Setting on the 'Iron" was a punishment which
prevailed at Edinburgh. It implied that the offender was to be placed in the
pillory or jagg at the public weighing place. There were also pillories at
St Michael's Well and the Fislimarket. Blasphemers were pilloried. Women who
in the seventeenth century were at Edinburgh convicted of impurity were
sentenced to be ducked in "the quarry hole," a filthy pool near Leith.
Commutation of punishment of a remarkable kind occurred in 1701, when five
persons who at Perth were convicted of theft, and would have been executed,
were allowed to escape death on accepting "perpetual servitude." One of the
number, appropriated as a worker in the silver mines at Alva, had fastened
upon his neck a metal collar inscribed thus:—"Alexander Steuart, found
guilty of death for theft, at Perth, the 5th of December 1701, and gifted by
the justiciars as a perpetual servant to Sir John Areskin of Alva."

The collar, now preserved in the National
Museum, was dredged from the Forth, in the waters of which the unhappy
culprit had doubtless sought relief from his miseries and serfdom.

Burghal order was strictly enforced. In 1650 the
magistrates of Linlithgow inflicted penalties on certain burgesses who had
acted towards them with disrespect. One burgess was fined for "not giffing
reverence," that is, not rendering obeisance to a bailie; another for having
" in his great raschness and suddantie destroyed the head of the tour's drum
"was deprived of burghal freedom, fined £50 and obliged to "sitt douse upon
his knees at the croce at ten houres before noose, and crave the provest
baillies and counsall pardone." On the 5th September 1663 the Town Council
of Dumfries deprived the wife of a burgess of municipal privileges for
venturing to appeal to the Sheriff against a judgment of the burgh court.
The municipal decree is in these words:—"Considering the great abuse of
their authoritie by Elizabeth Gibson . . , by writing an address to the
Sheriff Depute of Nithsdaile for repairing a wrong done by one of our
burgesses to her, whereby she has endeavoured to move the Sheriff Depute to
encrotch upon the privileges of this burgh, contrairie to the bound
prerogative of a burgess's wife; therefore the magistrates and counsel
discharge her of any privilege or libertie she can claim of freedom of trade
within this burgh."

The courts of law, numerous as they were, long
failed to repel insubordination and check lawlessness. With his Jedwood axe
and desperate followers, the Border moss-trooper defied the officers of
justice, and at times set the royal authority at nought. When summoned as an
offender before the Privy Council, or other court of law, the great barons
attended with their armed retainers. Of such retainers the (Treat Earl of
Douglas possessed two thousand, a number which rendered him more powerful
than the Government. "The backing of parties at the bar," as attendance at
the law courts with a body of followers was called, was in 1579 prohibited
by statute, but the practice did not then wholly cease.

Prior to the sixteenth century, the lesser
barons mainly relied on the, support of their powerful neighbours. To these
they granted bonds of manrent, in which in lieu of shelter and protection
they made pledge of service. Manned obligations were prohibited by statute
in 1457, but for two centuries later, bonds styled of "manrent" were granted
by one baron to another in pledge that revenge would not follow on an act of
injury, or that long-continued grudges Would peacefully subside.

Personal liberty in the eighteenth century was
not quite secure. Between the years 1740 and 1746 a magistrate of Aberdeen,
along with the Town Clerk Depute of the city, proceeded without fear of law
to kidnap persons in the adjoining districts, and to despatch them to the
American plantations. About six hundred men were so seized and borne off.
After the battle of Culloden, in 1746, the Duke of Cumberland exercised
towards the discomfited insurgents the same harsh measures as had in 1691
been extended towards the Macdonalds of Glencoe. Under form of law, civil
tyranny was only less formidable than military violence. The factor's "snash"
exercised upon his industrious father, led the poet Burns to compose his
odes on the dignity of labour, and on the rights of humanity, which, while
intensifying his own fame, have materially tended to repress sycophancy on
the one hand and to crush tyranny upon the other.

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